State v. Vetter

923 N.W.2d 491

STATE of North Dakota, Plaintiff and Appellant

v.Robert S. VETTER, Defendant and Appellee

No. 20180142

Supreme Court of North Dakota.

Filed February 21, 2019

Ryan A. Keefe, Assistant State’s Attorney, Bismarck, N.D., for plaintiff and appellant.

Chad R. McCabe, Bismarck, N.D., for defendant and appellee.

Tufte, Justice.

[¶1] The State appeals from an order granting Robert Vetter’s motion to suppress chemical test evidence and motion in limine. We conclude the district court misapplied the law in interpreting statutory requirements under the implied consent law and the court failed to properly consider the totality of the circumstances to determine whether Vetter voluntarily consented to the blood test. We reverse the district court’s order and remand for additional findings and for the court to determine whether Vetter’s consent was voluntary.

I

[¶2] Vetter was charged with driving under the influence of alcohol under N.D.C.C. § 39-08-01, a class B misdemeanor. Vetter moved to suppress the chemical test evidence, arguing the evidence was obtained as a result of an unconstitutional search and seizure. He claimed the chemical test of his blood was conducted without a warrant, his consent was based on an inaccurate implied consent advisory, he did not voluntarily consent to the blood test, and therefore the search was unreasonable and violated his constitutional rights. Vetter also filed a motion in limine, arguing the evidence of the chemical test should be excluded under N.D.C.C. § 39-20-01(3)(b) because the arresting officer did not read him the full post-arrest implied consent advisory.

[¶3] After a hearing, the district court granted Vetter’s motions and ordered the chemical test evidence be excluded. The court found a Burleigh County sheriff’s deputy stopped the vehicle Vetter was driving, Vetter admitted to the deputy that he had consumed alcohol that evening, and he volunteered to take a breathalyzer test. The court found the deputy read Vetter a version of the North Dakota implied consent advisory, Vetter completed the preliminary breath test, the deputy told Vetter the test showed his blood alcohol level was at .164%, and he was placed under arrest. The court further found the deputy read Vetter the implied consent advisory again, the deputy asked Vetter if he would consent to taking a test and Vetter said yes, the deputy asked Vetter if he would consent to take a blood test and Vetter said yes, and a blood test was administered. The court ruled Vetter’s consent to the blood test was coerced because he was read the implied consent advisory a second time after his arrest and the advisory implied Vetter could not refuse the test without criminal consequences. The court concluded the blood test evidence must be suppressed because it was obtained as a result of an unconstitutional search and seizure.

II

[¶4] Vetter argues the State’s appeal should be dismissed because the appeal is not authorized by N.D.C.C. § 29-28-07. Under N.D.C.C. § 29-28-07(5), the State may appeal from "[a]n order ... suppressing evidence ... when accompanied by a statement of the prosecuting attorney asserting that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding." Vetter claims the appeal is from an order granting a motion in limine, which is not an appealable order.

[¶5] This Court has held appeals by the State under N.D.C.C. § 29-28-07(5) are limited to appeals from the granting of a motion to suppress under N.D.R.Crim.P. 12(b)(3) and from the granting of a motion to return evidence under N.D.R.Crim.P. 41(e). See State v. Corona , 2018 ND 196, ¶¶ 7-9, 916 N.W.2d 610. Although a motion in limine and a motion to suppress both seek to exclude evidence, appeals are limited to orders excluding evidence because it was illegally obtained—we lack appellate jurisdiction to consider orders excluding evidence for other reasons. Id. ; State v. Simon , 510 N.W.2d 635 (N.D. 1994) (dismissing appeal from order excluding blood test on grounds that the expert analyst was not available for cross-examination and distinguishing illegally obtained evidence from other grounds for exclusion). Vetter filed a motion in limine seeking exclusion of the chemical test based on an incomplete implied consent advisory and a motion to suppress seeking exclusion of the same test based on a claim it was illegally obtained as a result of an unreasonable search. The court granted both motions and suppressed the blood test evidence, concluding the evidence was obtained as a result of an unconstitutional search. The State appealed from this order and also filed a statement from the prosecuting attorney stating the appeal was not taken for the purpose of delay and the evidence is substantial proof of a fact material to the proceeding. We conclude the State appealed from an order granting a motion to suppress and the appeal is authorized by N.D.C.C. § 29-28-07(5). See State v. Fleckenstein , 2018 ND 52, ¶ 4, 907 N.W.2d 365.

III

[¶6] The State argues the district court misapplied the law in interpreting statutory requirements under the implied consent law and the court erred in determining Vetter did not voluntarily consent to the blood test.

[¶7] In reviewing the district court’s decision on a motion to suppress, this Court gives deference to the district court’s findings of fact. Fleckenstein , 2018 ND 52, ¶ 5, 907 N.W.2d 365. The court’s decision will not be reversed on appeal if there is sufficient competent evidence fairly capable of supporting the court’s findings and the decision is not contrary to the manifest weight of the evidence. Id. Questions of law are fully reviewable, and whether a finding of fact meets a legal standard is a question of law. Id.

[¶8] The Fourth Amendment of the United States Constitution and Article I, Section 8 of the North Dakota Constitution prohibit unreasonable searches and seizures. See State v. Sauter , 2018 ND 75, ¶ 8, 908 N.W.2d 697. "The administration of a blood test to determine blood-alcohol concentration is a search under those constitutional provisions." Sauter , at ¶ 8 (quoting State v. Morales , 2015 ND 230, ¶ 8, 869 N.W.2d 417 ). Warrantless searches are unreasonable unless they fall within a recognized exception to the warrant requirement. State v. Hawkins , 2017 ND 172, ¶ 7, 898 N.W.2d 446.

[¶9] Voluntary consent is a recognized exception. Hawkins , 2017 ND 172, ¶ 7, 898 N.W.2d 446. The court must consider the totality of the circumstances to determine whether consent is voluntary, including the characteristics and condition of the accused at the time of the consent and the details of the setting in which the consent was obtained. Id. at ¶ 8. "[C]oercive police activity is a necessary predicate" to a finding that purported consent was not voluntary. State v. Webster , 2013 ND 119, ¶ 22, 834 N.W.2d 283. Whether consent is voluntary is a question of fact. Hawkins , at ¶ 7.

[¶10] The district court granted the motion to suppress and the motion in limine. The court found the deputy read Vetter the implied consent advisory before giving the preliminary breath test and Vetter was arrested after the preliminary breath test was administered. The court found the deputy read the implied consent advisory to Vetter a second time after his arrest, the deputy requested Vetter take a blood test without a warrant, and a blood test was administered. In determining whether Vetter voluntarily consented to the blood test, the court found there was no need for the deputy to have read the implied consent advisory again after the arrest and the deputy had an obligation to tell Vetter that he would suffer no criminal penalty if he refused to consent. The court ruled the second implied consent advisory more than implied Vetter could not refuse the blood test without criminal consequences and advising Vetter that state law required him to submit to a chemical test was coercive.

The Court ... conclude[d] as a matter of law that Vetter was, in essence, threatened with an unlawful search and his "consent" was coerced, given the inaccuracy of the second implied consent advisory, without which it can reasonably be presumed he would not have submitted to a blood test. This was a first time DUI arrest for defendant Vetter. The fact that [the deputy] gave two different North Dakota implied consent advisories, using the words "breath test" in the first and after the breath test was successfully completed gave the second advisory with the term "chemical test" is determinative.

The court concluded the State failed to prove Vetter voluntarily consented to the blood test.

[¶11] The district court found there was no need for the second implied consent advisory. Vetter and the State agree the district court was mistaken as to the law on implied consent advisories under N.D.C.C. §§ 39-20-14 and 39-20-01(3)(a) and erroneously believed the second advisory after arrest should not have been given. Section 39-20-01(3)(a), N.D.C.C., requires a law enforcement officer to:

inform the individual charged that North Dakota law requires the individual to take a chemical test to determine whether the individual is under the influence of alcohol or drugs and that refusal of the individual to submit to a test directed by the law enforcement officer may result in a revocation of the individual’s

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